Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 28 July 2018.
Jill dies without making a will. Her estate includes a house and a substantial bank account.
David makes an application for a grant of letters of administration on the basis that he was Jill’s de facto spouse and that he is entitled to the whole of her estate.
The probate Registry refuses David’s application on the basis that his affidavit evidence does not “go far enough” to establish the existence of a de facto relationship.
David applies to the Supreme Court for a review of the Registrar’s decision.
The court notes that to be successful, David would need to establish that he had a de facto relationship with Jill that had been in existence for a continuous period of two years.
David concedes that they were not financially dependent upon each other and that they maintained separate bank accounts and paid their own expenses. David also concedes that they did not own any assets jointly.
David and Jill had no children together.
The court also finds that David and Jill did not share a single residence. They each owned their own homes and David also owned a yacht, on which he spent some of his time.
However, the court found that David and Jill satisfied the requirement of “living together” but that the actual physical location of the common residence varied between the three locations.
The court also found that during their relationship, they cared for each other during times of ill-health and shared the performance of household duties. The court also accepted David’s evidence that as far as his family and circle of friends were concerned, they were regarded as a couple.
On the balance of the evidence, the court ruled that David was in a de facto relationship with Jill and that he was entitled to the whole of her estate.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
